Chapter 15: Linking Extra-legal Codes to Law: The Role of International Standards and Other Off-the-track Regimes
15. Linking extra-legal codes to law: the role of international standards and other off-therack regimes* Erich Schanze 1. INTRODUCTION In the famous article on the basic design of legal rules Calabresi and Melamed refer to Monet’s cycle of paintings of the Cathedral of Rouen.1 The circumspection of a monumental object in the turn of the sunlight displays the whole cosmos of forms and colors. For the equally famous eighteen haystacks Monet is quoted to have intended ‘to fix a genuine impression of a certain aspect of nature’. The ‘nature’ of the relation of law and the associated extra-legal norms such as standards or ‘codified’ ‘off-the-rack’ practices is rather vague. An exploration by circumspection may be an adequate approach in this matter. Let us first inspect a number of views concerning the relevance of extra-legal norms for law. Then we will explore a variety of ‘linkage mechanisms’ between law and extra-legal norms, notably national and international standards, which can be found in a number of technical contexts of law – so-called ‘reference norms’.2 All reference norms are styled from a legal centrist perspective, that of a judge who has to determine whether and to what extent a specific extra-legal norm can be ‘included’ in the legal considerations for reaching an equitable result in a given conflict. This legal centrist perspective starts from the premise that extra-legal norms are relevant only to the extent that a legal norm permits their ‘application’. It looks at a specific rule or mechanism that provides for them...
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